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United States v. Prado

United States District Court, W.D. Kentucky, Louisville

January 31, 2018

UNITED STATES OF AMERICA
v.
LEONARDO RODRIGUEZ PRADO LISANDRA DIAZ GARCIA DEFENDANTS

          MEMORANDUM OPINION

          Charles R. Simpson III, Senior Judge

         This matter is before the court on defendant Leonardo Rodriguez Prado's (hereinafter “Prado”) motions to dismiss the second superseding indictment against him on the basis of double jeopardy and prosecutorial vindictiveness. ECF No. 83, 93. The United States has responded to both motions. ECF Nos. 88, 95. For the reasons stated below, these motions will be denied.

         I. Factual Background

         On August 17, 2016, Prado was indicted in a four-count federal indictment for Wire Fraud and Aggravated Identity Theft. ECF No. 1. According to the indictment, Prado planted a skimmer on a gas pump at a gas station on U.S. Highway 42 in Prospect, Kentucky for the purpose of collecting customers' credit and debit card information. Id. at ¶ 6. A superseding indictment was filed on December 21, 2016, reincorporating the four counts listed in the original indictment and adding a count for Possession of Unauthorized and Counterfeit Access Devices. ECF No. 22.

         In preparation for trial, the United States filed a motion in limine on August 11, 2017 seeking to admit two of Prado's prior state court convictions as evidence.[1] ECF No. 58. According to the United States, these prior convictions were admissible under Federal Rule of Evidence (FRE) 404(b)(2) to show “motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” Prado responded to this motion, arguing that evidence of his prior state court convictions was not probative and would be unfairly prejudicial. ECF No. 61. Then, on September 6, 2017-less than two weeks after Prado filed his response- the United States filed a second superseding indictment adding five counts for Aggravated Identity Theft based on the acts underlying Prado's state court convictions.

         On December 5, 2017, Prado filed a motion to dismiss counts 4, 11, 12, 13, and 14 of the second superseding indictment as a violation of double jeopardy. Then, on January 4, 2018, Prado filed a motion to dismiss the entire second superseding indictment on the basis of prosecutorial vindictiveness.

         II. Legal Standard

         Prado first claims that counts 4, 11, 12, 13, and 14 should be dismissed based on double jeopardy. The Double Jeopardy Clause of the Fifth Amendment states that no “person [shall] be subject for the same offence to be twice put in jeopardy of life or limb.” U.S. Const., Amend. V. “It protects against a second prosecution for the same offense after acquittal . . . [and] after conviction . . . and it protects against multiple punishments for the same offense.” Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977) (quoting North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969)).

         The Dual Sovereignty Doctrine clarifies that “the [D]ouble [J]eopardy [C]lause ‘does not apply to suits by separate sovereigns, even if both are criminal suits for the same offense.'” U.S. v. Louisville Edible Oil Products, Inc., 926 F.2d 584, 587 (6th Cir. 1991) (citation omitted). Thus, it is permissible for the federal government to prosecute a defendant for the same crime that was previously prosecuted by the state government, or vice versa.

         Prado next claims that the second superseding indictment should be dismissed in its entirety based on the theory of prosecutorial vindictiveness. Although prosecutors have broad discretion, the Due Process Clause “prohibits the prosecution from punishing a defendant for exercising a protected statutory or constitutional right. U.S. v. LaDeau, 734 F.3d 561, 566 (6th Cir. 2013). There are two ways a defendant may obtain a dismissal of an indictment on the grounds of prosecutorial vindictiveness. The defendant may show ‘actual vindictiveness' through “objective evidence that the prosecutor acted in order to punish the defendant for standing on his legal rights.” Bragan v. Poindexter, 249 F.3d 476, 481 (6th Cir. 2001). Alternatively, the defendant may show that “in the particular factual scenario presented, there existed a ‘realistic likelihood of vindictiveness' for the prosecutor's action.” Id. A ‘realistic likelihood of vindictiveness' is presumed when “(1) the prosecutor has some stake in deterring the defendant's exercise of his rights, and (2) the prosecutor's conduct was somehow unreasonable.” LaDeau, 734 F.3d at 566-67 (internal citation omitted). If a defendant demonstrates a ‘realistic likelihood of vindictiveness, ' the burden then shifts to the government to rebut this presumption. Id.

         III. Discussion

         A. Motion to Dismiss on Double Jeopardy Grounds

         Prado's first motion argues that counts 4, 11, 12, 13, and 14 of the second superseding indictment should be dismissed as a violation of double jeopardy. Prado acknowledges that the Dual Sovereignty Doctrine allows for state and federal prosecution of the same offense. However, Prado contends that the United States' decision to re-prosecute him for the offenses underlying his state court convictions thwarts the aims of the Fifth Amendment. Specifically, Prado contends that this is a ‘sham prosecution' meant to punish Prado for exercising his right to go to trial.

         In Bartkus v. Illinois, 359 U.S. 121, 123, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959), the Supreme Court suggested that there may be an exception to the Dual Sovereignty Doctrine when one sovereign acts “merely [as] a tool of [the other sovereign, ] thereby avoid[ing] the [Double Jeopardy Clause] of the Fifth Amendment . . .” This exception-known as the ‘sham prosecution' exception or the Bartkus exception-has been construed extremely narrowly by the lower courts. It requires more than merely showing “cooperation between the two sovereigns.” U.S. v. Djoumessi, 538 F.3d 547, 550 (6th Cir. 2008). Rather, it must be shown that one sovereign “ced[ed] its authority to prosecute and act[ed] only because the [other sovereign] told it to do so.” Id.; See also U.S. v. Clark, 254 Fed.Appx. 528, 533 (6th Cir. 2007) (refusing to recognize an exception to the Dual Sovereignty Doctrine because “[n]othing in the record suggest[ed] that [state] ...


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